Re-evaluating the test for the transfer of care proceedings

Re-evaluating the test for the transfer of care proceedings

Family analysis: When should care proceedings be transferred to a ‘better placed’ court in another Member State? William Tyler QC, of 36 Bedford Row and Park Square Barristers, examines the Supreme Court’s approach to that question in Re N (Children) (Jurisdiction: Care Proceedings).

Original news

Re N (Children) (Jurisdiction: Care Proceedings) [2016] UKSC 15, [2016] All ER (D) 71 (Apr)

The Supreme Court allowed an appeal by the children’s guardian and the local authority against a decision that the Hungarian court was better placed to hear a case regarding two children and that transferring the case to Hungary would be in the children’s best interests. The children were Hungarian nationals born in the UK to Hungarian parents. The transfer request would be set aside and the case would be returned to the Family Division.

What was the case about?

Two Hungarian Roma children were the subject of care and adoption proceedings in England. The mother’s application for a request to be made that the case be transferred to Hungary was only eventually decided after the judge had heard all of the evidence but before he gave his final welfare judgment. He decided to make the request of the Hungarian courts. If accepted, this would have had the inevitable effect that not only would the case be immediately transferred to Hungary, but so would the children, who had by that time been living for a considerable time with an English-speaking foster carer who wished, with the support of the local authority, to adopt both children.

What were the issues in the appeals?

In November 2015, the Court of Appeal handed down a mammoth and wide-ranging judgment, running to 192 paragraphs in Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2015] All ER (D) 32 (Nov).

That judgment dealt with:

  • the basis for, and guidelines in relation to, the non-consensual adoption of foreign children in English courts
  • whether requests under article 15 of Regulation (EC) 2201/2003 (Brussels II bis) for the courts of other EU Member

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